Delhi District Court
Amarjeet Singh Kakkar vs Sh. Kuldeep Kumar Sawhney on 23 December, 2022
IN THE COURT OF SH. SYED ZISHAN ALI WARSI:
ADDITIONAL DISTRICT JUDGE-05: WEST DISTRICT:
TIS HAZARI COURTS: DELHI
Civ DJ No.607784/16
CNR No. DWT01-000065-2013
In the matter of :
1. Amarjeet Singh Kakkar
S/o late Sh. Sardar Singh Kakkar
R/o 6/78, Old Rajinder Nagar, New Delhi
2. Jasbir Singh Kakkar
S/o late Sh. Sardar Singh Kakkar
R/o 10/85, Top Floor
Old Rajinder Nagar
.......... Plaintiffs
Vs.
1. Sh. Kuldeep Kumar Sawhney
S/o Sh. G.L Sawhney
R/o BS 186 C, Shalimar Bagh, New Delhi
2. Smt. Beena Suri
W/o Sh. Tarun Suri
R/o Gali No. 12, Krishna Puri
New Delhi .......... Defendants
SUIT FOR POSSESSION, PERMANENT AND MANDATORY
INUNCTION AND MESNE PROFIT
Date of institution : 06.09.2013
Judgement Reserved on : 22.12.2022
Date of Decision : 23.12.2022
JUDGEMENT
1. Plaintiffs namely Amarjeet Singh Kakkar and Jasbir Singh Kakkar Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 1 of 26 are the sons of late Sh. Sardar Singh Kakkar brother of Sh. Arjun Dass Kakkar and they are legal heirs of deceased late Smt. Raj Kumari Kakkar (Smt Raj Kumari Kakkar, deceased W/o Sh. Arjun Dass Kakkar (predeceased) died issueless and intestate on 01.01.2005) being legal heirs of her late husband Sh. Arjun Dass Kakkar. The plaintiffs being legal heirs has filed the present suit for possession, permanent and mandatory injunction and mesne profit against defendants.
2. The facts of the case in nutshell are like that :-
"Late Smt. Raj Kumari Kakkar owned property bearing No. WZ- B/47, First Floor, area measuring 50 sq yds, plot no. 207, Khasra No. 29, Village Nangli Jalab, Known as Krishnapuri, New Delhi (hereinafter referred to as 'suit property'), FDRs no TD 68612 and 68604, A/c No. 4143 for Rs. 58,862/- and Rs. 25,507/-, PNB, Tilak Nagar, New Delhi and golden rings and chain etc. It is stated that the husband of deceased Smt. Raj Kumari was a person of means and he left good amount of cash and other valuables movable and immovable property after his death all his property was in possession of deceased and the deceased used to spent money left by her husband as per her needs. It is stated that the at the time of death Late Smt. Raj Kumari Kakkar was residing at the above mentioned address and sister of deceased namely Smt. Swarnlata Sawhney and her son Sh. Kuldeep Kumar Sawhney had been visiting regularly and since at the time of death of deceased they were present at suit property. It is stated that taking advantage of situation they Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 2 of 26 took all the movables property of deceased and also the original property papers of suit property, original FDRs and all documents and other movable property illegally. It is stated that after the death of deceased when initially the plaintiffs asked the defendants and their mother to leave the suit property they asked for some time but seeing the bad financial condition of defendants the plaintiff did not took any coercive action and allowed them to stay in the suit property. It is stated that later on intention of defendants and their mother became bad and they illegally started demanding money from the plaintiffs for vacating the suit property, which plaintiff refused. It is stated that after some time defendant no. 1 started making frivolous demand of Rs. 1,36,422/- from the plaintiffs. It is stated that defendant filed one interpleader suit for recovery of a sum of Rs. 1,36,422/- against the plaintiffs when the plaintiffs refused to pay the same and the said suit was dismissed in default on 20.09.2011. It is stated that during the pendency of the suit, mother of defendants also filed a suit for declaration, permanent and mandatory injunction and for recovery of Rs.1,50,000/- against the plaintiffs. It is stated that vide order dated 04.08.2011 the application under order 39 Rule 1 and 2 CPC was dismissed. It is stated that during the pendency of the suit, mother of the defendants were also expired and defendant moved an application under order 22 Rule 3 CPC which is pending for adjudication. It is pertinent to mention here that in both the above mentioned suits, the defendant no.1 and his Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 3 of 26 mother did not claim any right in the property of deceased, in fact they admitted the entitlement of plaintiffs right in deceased property. The defendants are now illegally withholding the property of deceased and not handing over the same to plaintiffs. It is stated that after dismissal of the suit filed by defendant no.1 and also also dismissal of application under order 39 Rule 1 and 2 CPC filed by mother of defendants with respect to the suit property, the defendant no. 1 is adamant in his illegal demand of money in lieu of vacating the suit property and refused to hand over the plaintiffs possession of suit property and documents of the same and original copy of FDR of deceased.
It is stated in last week of August, 2013 the plaintiffs came to know from their sources that defendants are trying to transfer the suit property illegally to third party. The defendants had already misappropriated pair of karas, chuurians, two chain, pair of ear rings, four rings, necklace all made of gold and cash amount in lakhs owned and possessed by deceased. It is stated that the defendants have usurped the said property of deceased illegally and now in wrongful possession of above mentioned movable and immovable property of deceased. It is stated that the plaintiff are legal heirs of the deceased late Smt. Raj Kumari Kakkar and rightful claimant of her property and hence the defendants are liable to hand over the possession of all the movable and immovable property of deceased late Smt. Raj Kumar Kakkar to plaintiffs. Hence, plaintiff filed the Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 4 of 26 present suit seeking following reliefs from the Court:-
(a) Pass a decree of permanent injunction in favour of the plaintiffs and against the defendants and their assignee, attorneys, legal heirs, agents etc from any manner transferring, assigning, mortgaging, selling any manner creating any third party interest or parting with possession of any part of property in favour of any person other than plaintiff in respect of suit property bearing No. WZ-B/47, First Floor, area measuring 50 sq yds, plot no. 207, Khasra No. 29, Village Nangli Jalab, Known as Krishnapuri, New Delhi more specifically shown in red colour in the site plan and FDRs no. TD 68612 and 68604, A/c No. 4143 for Rs. 58,862/- and Rs. 25,507/-, PNB, Tilak Nagar, New Delhi
(b) Pass a decree of for possession with respect to the suit property bearing No. WZ-B/47, First Floor, area measuring 50 sq yds, plot no. 207, Khasra No. 29, Village Nangli Jalab, Known as Krishnapuri, New Delhi
(c) Pass a decree of mandatory injunction thereby directing the defendants to hand over possession of all original documents (GPA/AGT /Will/Receipt/Affidavit etc executed in favour of deceased Raj Kumari kakkar) related to suit property bearing No. WZ-B/47, First Floor, area measuring 50 sq yds, plot no. 207, Khasra No. 29, Village Nangli Jalab, Known as Krishnapuri, New Delhi and FDRs no TD 68612 and 68604, A/c No. 4143 for Rs. 58,862/- and Rs. 25,507/-, PNB, Tilak Nagar, New Delhi to the plaintiff.
Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 5 of 26
(d) A decree of mesne profits with respect to suit property bearing No. No. WZ-B/47, First Floor, area measuring 50 sq yds, plot no. 207, Khasra No. 29, Village Nangli Jalab, Known as Krishnapuri, New Delhi in favour of the plaintiffs and againts all the defendants from the date of filing of present case till actual handing over of possession of suit property by the defendants to the plaintiffs.
(e) The cost of the suit throughout may also be awarded in favour of the plaintiff and against the defendants."
3. Defendants had filed written statement in which they took the preliminary objection that the suit of the plaintiff is barred by law and the plaint is liable to be rejected under provisions of Order VII Rule 11 CPC. It is alleged that the suit property is situated outside territorial jurisdiction of this court. It is stated that the plaintiffs have no locus standi to file the present suit in as much as that they had neither inherited nor otherwise acquired any right in the suit property or any part of the estate of late Raj Kumari Kakkar. It is stated that the present suit is only an attempt of grabbing and usurping the said estate which had lawfully been inherited by and devolved on the defendants and defendant no. 1 in whose favour all the sisters including the defendant no. 2 had executed the deed of relinquishment. It is stated that the Smt. Raj Kumari Kakkar was staying with the plaintiff No. 1 till the year 2000 but due to some strained relations, he had thrown her out of his house after seriously misbehaving with her and thereafter Smt. Raj Kumari Kakkar had shifted to the Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 6 of 26 resident of her sister Smt. Swaran Lata Swahney, mother of the defendants in this suit. It is stated that the mother of defendants had maintained Smt. Raj Kumari Kakkar with utmost care and devotion. It is stated that in the end of year 2004, Smt. Raj Kumari Kakkar was being admitted to Jaipur Golden Hospital as she was suffering a serious attack of pneumonia and the defendants and their mother do the requisite paper work. It is stated that the plaintiffs had also failed to reach the cremation site nor performed the last rites which also had been performed by the defendant no. 1. It is stated that after the demise of Smt. Raj Kumari Kakkar all the valuables were in possession of defendants' mother including the house built on land measuring 50 sq yds bearing Flat No. 207, Khasra No. 29, bearing No. WZ-B/47, Village Nangli Jalab better known as Krishanpuri, New Delhi and the two FDRs No. 2947 and 2948 respectively of the value of Rs. 25,507 and Rs. 58,862/- and one pair of golden ear-rings and a golden chain. It is stated that defendant's mother did not intend to retain the value of the said FDRs herself, she demanded from the plaintiffs the amounts spent by her both on the maintenance and medical care of Smt. Raj Kumari Kakkar but they had failed to come forward with payment of the said amounts but continued to put pressure on the defendants. It is stated that defendant No. 1 had also filed an inter-pleader suit. It is also stated that the mother of the defendants had to file another suit being an interested person seeking the relief of declaration etc. which is still pending for adjudication (However, it is relevant to mention here that during the pendency of present suit, the said suit was dismissed by the Ld. Trial Court). It is stated that the defendant's mother became the de-facto owner of the suit property since Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 7 of 26 the life time of Smt. Raj Kumari Kakkar who had entrusted all relevant documents, FDRs and the jewelery to her but inspite of this situation, the plaintiff No. 2 had approached the defendants and their mother while repeating the same demand. It is stated that the suit is barred by limitation as Smt. Raj Kumari Kakkar had expired on 01.01.2005. The suit is also barred by the principles of res-judicata. The plaintiffs have not come to this court with clean hands and suppressed the material facts. On merits, defendants refuted the version of the plaintiffs by referring to aforesaid preliminary objections. Same are not repeated here for the sake of brevity. Lastly, defendants have prayed that this Court may dismiss the suit of the plaintiffs with costs.
4. Plaintiffs filed replication/ rejoinder to written statement of defendants wherein contents of plaint were reiterated and version of defendants was denied.
5. After completion of pleadings, following issues were settled on 12.12.2017:-
(i) Whether the plaintiff is entitled for a decree of permanent injunction thereby restraining the defendants from creating third party interest in the suit property?OPP
(ii) Whether the plaintiff is entitled for a decree of possession of suit property?OPP
(iii) Whether the plaintiff is entitled for a decree of mandatory injunction thereby directing the defendants to hand over possession of all original documents qua suit property?OPP Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 8 of 26
(iv) Whether the plaintiff is entitled for a decree of mandatory injunction thereby directing the defendants to hand over two FDRs as prayed for? OPP
(v) Whether the plaintiff is entitled for a decree of mesne profit?If yes, for what period and on what rate?OPP
(vi) Whether the suit property was gifted by Smt. Raj Kumari to mother of defendant?OPD
(v) Relief.
6. In Plaintiff's evidence, plaintiff no.1 Amarjeet Singh Kakkar examined himself as PW-1 and tendered his evidence by way of affidavit as Ex.PW-1/A in which he reiterated the contents of plaint which are not repeated here for the sake of brevity. PW-1 relied upon following documents:-
Exhibits Nature of documents
Ex. PW-1/1 Site Plan
Ex PW-1/2 is Copy of GPA, Agreement to sell, SPA, death
marked as Mark A certificate etc.
colly
Ex PW-1/3 Certified copy of plaint in civil Suit No. 128/05 titled
as Kuldeep Kumar Sahani Vs. Amarjeet Singh
Kakkar & Anr.
Ex PW-1/4 Certified copy of plaint in civil suit No. 163/10 titled
as Swarnlata Sawhney Vs. Amarjeet Singh Kakkar & Anr.
Ex PW-1/5 Certified copy of order sheet & order dated 04.08.2011 of Civil Suit No. 163/10 Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 9 of 26 Ex PW-1/6 Certified copy of order dated 30.05.2016
7. PW-1 was cross-examined at length by ld. Counsel for the defendant.
8. No other witness was examined on behalf of the plaintiff and accordingly, vide order dated 24.10.2019, PE was closed and the matter was fixed for defendant's evidence.
9. In his defence, defendant no.1 Kuldeep Kumar Sawhney examined himself as DW-1. He tendered his evidence by way of affidavit as Ex.DW1/A in which he reiterated the contents of written statement which are not repeated here for the sake of brevity. DW-1 relied upon following documents:-
S.No Exhibits Nature of documents
1. Ex. DW-1/1 Medical treatment bills of deceased
(colly) (OSR) Smt. Raj Kumari Kakkar
2. Ex. DW-1/2 Cremation receipt dated 05.01.2005
(OSR)
3. Ex. DW-1/3 Copies of complaint dated
(Colly) is marked 03.01.2004 and 24.01.2005.
as Mark A
4. Ex. DW-1/4 is Copy of order sheet dated
marked as Mark 06.01.2018 (de exhibited and marked B as Mark B)
5. Ex. DW-1/5 Original GPA (OSR)
6. Ex. DW-1/6 Certified copy of judgment dated 31.05.2016 Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 10 of 26
10. Ms. Beena @ Ruchi Suir is examined as DW-2. She tendered her evidence by way of affidavit which is Ex. DW-2/A. She relied upon the documents which are already exhibited in the examination-in-chief of DW1.
11. Defendants' evidence was closed vide order dated 10.11.2022 and thereafter the matter was fixed for final arguments.
12. Final arguments were addressed on behalf of both the parties and after hearing final arguments, matter was fixed for judgment.
ARGUMENTS
13. Ld. counsel for the plaintiffs argues that Late Smt. Raj Kumari Kakkar owned suit property, FDRs no TD 68612 and 68604, A/c No. 4143 for Rs. 58,862/- and Rs. 25,507/-, PNB, Tilak Nagar, New Delhi and golden rings and chain etc and at the time of death Late Smt. Raj Kumari Kakkar was residing in suit property and sister of deceased namely Smt. Swarnlata Sawhney and her son Sh. Kuldeep Kumar Sawhney had been visiting regularly and since at the time of death of deceased they were present at suit property. It is further argued that taking advantage of situation they took all the movables property of deceased and also the original property papers of suit property, original FDRs and all documents and other movable property illegally and after the death of deceased when initially the plaintiffs asked the defendants and their mother to leave the suit property they asked for some time but seeing the bad financial condition of defendants the plaintiff did not took Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 11 of 26 any coercive action and allowed them to stay in the suit property. He further submits that later on intention of defendants and their mother became bad and they illegally started demanding money from the plaintiffs for vacating the suit property, which plaintiff refused and after some time defendant no. 1 started making frivolous demand of Rs. 1,36,422/- from the plaintiffs and filed one interpleader suit against the plaintiffs and the said suit was dismissed in default on 20.09.2011. He further argued that during the pendency of the suit, mother of defendants also filed a suit for declaration, permanent and mandatory injunction and for recovery of Rs. 1,50,000/- against the plaintiffs, the suit for declaration etc was dismissed by the Ld. Trial Court. He further argued that in both the above mentioned suits, the defendant no.1 and his mother did not claim any right in the property of deceased, in fact they admitted the entitlement of plaintiffs right in deceased property and now illegally withholding the property of deceased and not handing over the same to plaintiffs only to extort the money. It is prayed that suit of the plaintiff may be decreed.
On the other hand, Ld. Counsel for defendant argued that the present suit is only an attempt to grab and usurp the suit property which had lawfully been inherited by and devolved on the defendants and defendant no. 1 in whose favour all the sisters including the defendant no. 2 had executed the deed of relinquishment. She further argues that the Smt. Raj Kumari Kakkar was staying with the plaintiff No. 1 till the year 2000 but due to some strained relations, he had thrown her out of his house after seriously misbehaving with her and thereafter Smt. Raj Kumari Kakkar had shifted to the resident of her sister Smt. Swaran Lata Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 12 of 26 Swahney, mother of the defendants in this suit and mother of defendants had maintained Smt. Raj Kumari Kakkar with utmost care and devotion. It is further argued that in the end of year 2004, Smt. Raj Kumari Kakkar was being admitted to Jaipur Golden Hospital as she was suffering a serious attack of pneumonia and the defendants and their mother do the requisite paper work and the plaintiffs had also failed to reach the cremation site nor performed the last rites which also had been performed by the defendant no. 1. She further argued that after the demise of Smt. Raj Kumari Kakkar all the valuables were in the possession of defendants' mother including the suit property and the two FDRs No. 2947 and 2948 respectively of the value of Rs. 25,507 and Rs. 58,862/- and one pair of golden ear-rings and a golden chain. She further argues that defendant's mother did not intend to retain the value of the said FDRs herself, she demanded from the plaintiffs the amounts spent by her both on the maintenance and medical care of Smt. Raj Kumari Kakkar but they had failed to come forward with payment of the said amounts but continued to put pressure on the defendants and defendant No. 1 had also filed an inter-pleader suit. She further argues that the mother of the defendants had filed another suit seeking the relief of declaration which is still pending in appeal. Lastly, it is prayed that this Court may dismissed the suit of the plaintiff with costs.
14. It is relevant here, before appreciation of evidence and deciding the issues, the position of law as settled is that the onus of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims on preponderance of probability against the Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 13 of 26 defendant. As per the principles of Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another, VI (2003) SLT 307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues.
Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 14 of 26 APPRECIATION OF EVIDENCE AND ISSUE-WISE FINDINGS ARE AS UNDER:
Issue No. 1 to 6(i) Whether the plaintiff is entitled for a decree of permanent injunction thereby restraining the defendants from creating third party interest in the suit property?OPP
(ii) Whether the plaintiff is entitled for a decree of possession of suit property?OPP
(iii) Whether the plaintiff is entitled for a decree of mandatory injunction thereby directing the defendants to hand over possession of all original documents qua suit property?OPP
(iv) Whether the plaintiff is entitled for a decree of mandatory injunction thereby directing the defendants to hand over two FDRs as prayed for?OPP
(v) Whether the plaintiff is entitled for a decree of mesne profit?If yes, for what period and on what rate?OPP And
(vi) Whether the suit property was gifted by Smt. Raj Kumari to mother of defendant?OPD
15. Onus of prove for issue no.1 to 5 is rested on the plaintiffs and issue no.6 is rested on the defendants as the fate of the present suit is dependant on the final finding of all these issues as being inter-related. Accordingly, they are dealt in the following paras by common Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 15 of 26 appreciation of evidence and record of this case.
16. Admittedly, the suit property was owned by late Smt. Raj Kumar Kakkar W/o Sh. Arjun Dass Kakkar (Predeceased) who died issueless and intestate. Plaintiffs are sons of Late Sh. Sardar Singh Kakkar brother of Sh. Arjun Dass Kakkar i.e. husband of late Smt. Raj Kumari Kakkar.
17. In order to discharge their onus, plaintiffs have examined plaintiff no.1 i.e. Sh. Amarjeet Singh Kakkar as PW1. He has supported the contents of the plaint and replication in his evidence by way of affidavit Ex PW1/A. PW1 has placed on record Ex. PW-1/1 i.e. site plan, Mark A (colly) i.e. Copy of GPA, Agreement to sell, SPA, death certificate etc Ex PW1/3 i.e. Certified copy of plaint in Civil Suit No. 128/05 titled as Kuldeep Kumar Sahani Vs Amarjeet Singh Kakkar & anr., Ex PW1/4 i.e. Certified copy of plaint in civil suit No. 163/10 titled as Swarnlata Sawhney Vs. Amarjeet Singh Kakkar & Anr., Ex. PW-1/5 Certified copy of order sheet & order dated 04.08.2011 of Civil Suit No. 163/10 and Ex. PW-1/6 i.e. Certified copy of order dated 30.05.2016 to fortify his testimony by documentary evidence.
18. In his testimony, PW1 relied upon certain document which are appreciated by court in subsequent paragraphs.
19. PW1 relied upon site plan Ex PW1/1. The site plan is hereby perused and on its perusal the dimension of the property has been found to be in accordance i.e. consistent with the description given of the suit property in the plaint as well as in evidence by way affidavit i.e Ex Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 16 of 26 PW1/A and the same is not disputed by the defendants neither in the WS nor in the cross-examination of PW1. Thus, the site plan of the suit property i.e. Ex PW1/1 is hereby duly proved by PW1.
20. Further, PW1 relied upon Mark A (colly) i.e. Copy of GPA, Agreement to sell, SPA, death certificate etc and Ex DW1/5 (OSR) (The same has been inadvertently marked on the document as Ex DW1/3). On perusal of the same, it becomes clear that the GPA, agreement to sell etc. were in the name of deceased Smt. Raj Kumari Kakkar and this fact is not disputed by defendants.
21. PW1 has further relied upon Ex PW1/3 i.e. Certified copy of plaint in Civil Suit No. 128/05 titled as Kuldeep Kumar Sahani Vs Amarjeet Singh Kakkar & anr. The court has perused the document minutely. Perusal of Ex PW1/3 reveals that the said suit was an Interpleader suit under Order XXXV of CPC was filed against the plaintiffs herein by the defendant no.1 herein i.e. Sh. Kuldeep Kumar Sawhney. Further in the WS, it is stated that the defendant no.1 has filed an interpleader suit. Thus, in view of the admitted situation of the interpleader suit, it is established that defendant no.1 has filed the interpleader suit against the plaintiffs. The relevant paras of said suit are reproduced as under:-
"...5. That the deceased has left behind the following papers/documents/ title deed relating to movable and immovable properties in the hands of the plaintiff:
(a) A house build on 50 sq. yds on plot no. 207, Kh. No. 29, situated in the revenue estate of Village Nangli Jalab, known as Krishnapuri, New Delhi and bearing No.WZ-B/47, First Floor.
(b) FDR No. 2947 & 2948 for an amount of Rs.25,507/-
Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 17 of 26 (Rupees Twenty five thousand five hundred seven only) and Rs.58,862/- (Rupees fifty eight thousand eight hundred sixty two only) respectively.
(c) One pair of golden ear-rings and a gold chain.
It is submitted that the abovesaid immovable property to the deceased is in possession of the plaintiff and he is wiling to hand over the same to the rightful claimant as declared by this Hon'ble Court.
6. That the defendant no.1 & 2 are claiming the assets of the deceased from the plaintiff adversely to one another each stating himself to be the only person entitled to the said properties of the deceased.
xxx xxx xxx
9. That the plaintiff claims no interest in the said property of the deceased except the charges and cost as stated in the subsequent paras..."
22. Thus, from Ex PW1/3 it becomes clear that the defendants in the interpleader suit has specifically stated that they do not have any interest in the suit property. It is further relevant to mention here that vide Ex PW1/6 the suit for declaration, permanent and mandatory injunction filed by the defendant no.1 relating to the suit property has been dismissed vide order dated 30.05.2016. The said facts remain unrebutted in the cross- examination of PW1.
23. The only conduct of the plaintiff brought on record in cross- examination by the defendants is with respect to the fact that the plaintiffs had not visited late Smt. Raj Kumari Kakkar while she was admitted in Jaipur Golden Hospital and not attending the cremation of late Smt. Raj Kumari Kakkar. However, on careful perusal of the cross-examination, this Court is of the view that the fact of not visiting the hospital and cremation of Late Smt. Raj Kumar Kakkar is due to the fact that the mother of the plaintiff was also seriously ill at the same time and Smt. Raj Kumar Kakkar got expired 4-5 days prior to his mother. Thus, this court is Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 18 of 26 of the view that the plaintiff was under such circumstances that he cannot reasonably visit late Smt. Raj Kumar Kakkar as his mother was also seriously ill at the same time. Accordingly, this fact is of no avail to the defendant.
24. On the other hand, the documents relied by the defendant i.e. Ex DW1/1 (colly) medical treatment bills of deceased Smt. Raj Kumar Kakkar, Ex DW1/2 OSR the cremation receipt dated 05.01.2005, Mark A (colly) the copies of complaint dated 03.01.2004 and 24.01.2005, Mark B copy of order dated 06.01.2018 and Ex DW1/5 is GPA and Ex DW1/6 certified copy of judgment dated 31.05.2016, all these documents are of no consequence as they only established the fact with regard to illness, death, ownership of Late Smt. Raj Kumari Kakkar as well as dispute by the defendants with plaintiffs for the suit property, but in no way supports the claim of the defendants. Further, in cross-examination, the defendant has admitted that no document was prepared by Late Smt. Raj Kumari Kakkar whereby she handed over her property in favour of his mother. He states that transfer of property was made orally but he does not remember the date or even the month and year of handing over of the suit property in favour of his mother. While, on the other hand, as appreciated above, the interpleader suit and the dismissal of declaration suit are the facts which are against the alleged claim of the defendants.
25. Now, this Court has to decide whether the plaintiffs are entitled by way of succession to the suit property, FDRs and gold etc. and for the purpose of same, it is relevant to consider Section 14, 15 & 16 of Hindu Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 19 of 26 Succession Act which is reproduced as under:-
14. Property of a female Hindu to be her absolute property.--(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.--In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
15. General rules of succession in the case of female Hindus.--(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,--
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),--
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter), not upon the other heirs referred to in sub- section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 20 of 26 absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.
16. Order of succession and manner of distribution among heirs of a female Hindu.--The order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestate's property among those heirs shall take place, according to the following rules, namely:
Rule 1.--Among the heirs specified in sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously.
Rule 2.--If any son or daughter of the intestate had pre- deceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death. Rule 3.--The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death..."
26. Now, from the aforesaid sections a corollary can be drawn that the property of a female Hindu is her absolute property as full owner and if the female Hindu dying intestate then as per Section 15 (b) it has to devolved upon the heirs of her husband.
27. Reverting back to the facts of case at hand, the plaintiffs are alleged to be son of brother of husband of Late Smt. Raj Kumar Kakkar i.e. heirs of her husband and there is no specific denial by defendants in Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 21 of 26 their WS that the plaintiffs are not son of the brother of husband of deceased late Smt. Raj Kumar Kakkar. At this stage, it is profitable to rely on the observation as made by Hon'ble Supeme Court in Jaspal Kaur Cheema v. Industrial Trade Links, (2017) 8 SCC 592 : (2017) 4 SCC (Civ) 169 : 2017 SCC OnLine SC 712 which is reproduced as under:-
"...7. In terms of Order 8 Rule 3 of the Code of Civil Procedure, 1908 (for short "the Code"), a defendant is required to deny or dispute the statements made in the plaint categorically, as evasive denial would amount to an admission of the allegation made in the plaint in terms of Order 8 Rule 5 of the Code. In other words, the written statement must specifically deal with each of the allegations of fact made in the plaint. The failure to make specific denial amounts to an admission. This position is clear from the decisions of this Court in Badat and Co. v. East India Trading Co. [Badat and Co. v. East India Trading Co., (1964) 4 SCR 19 : AIR 1964 SC 538] , Sushil Kumar v. Rakesh Kumar [Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673] and M. Venkataramana Hebbar v. M. Rajagopal Hebbar [M. Venkataramana Hebbar v. M. Rajagopal Hebbar, (2007) 6 SCC 401] ..."
28. Thus, in view of this Court, in the absence of specific denial by the defendants the fact that the plaintiffs are the son of brother of husband of Late Smt. Raj Kumar Kakkar amounts to admission and it is hereby established that they are being son of brother of husband of Smt. Raj Kumari Kakkar are heirs of her husband.
29. Regarding the claim of mesne profits, there is no evidence brought on record by the plaintiffs that the defendants is in unlawful possession of the suit property while on the other hand, it is plaintiffs' own case that since the time of death of Smt. Raj Kumari Kakkar the defendants were Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 22 of 26 present on the suit property and seeing the bad financial condition of defendants the plaintiffs had not took any coercive action against the defendants and permitted them to stay in the suit property. Thus, the defendants are not in wrongful possession of the suit property as they are in permissive possession of the suit property.
30. With regard to the fact of the gift of suit property by Late Smt. Raj Kumari Kakkar to the mother of the defendant, the defendant has failed to brought on record any document or fact with regard to gift of suit property in favour of his mother. While on the other hand, DW1 in his cross examination stated that no document was prepared by Late Smt. Raj Kumari Kakkar whereby she handed over her property in favour of her mother, further, he does not remember the date, month or even year when late Smt. Raj Kumari Kakkar had handed over her property in favour of his mother. Thus, the defendant has failed to discharge the onus that the suit property was gifted by Late Smt. Raj Kumari Kakkar to the mother of the defendants.
31. Further, the citations as cited by Ld. counsel for defendant i.e. Ramachandra Sakharam Mahajan Vs Damodar Trimbak Tanksale (D) & Ors. DOD 09.07.2007 bearing Appeal (Civil) 2920 of 2007 is not applicable to the facts and circumstances of the present case.
32. Thus, on the basis of aforesaid, appreciation of evidence and discussion on the position of law, the plaintiffs have discharged the onus Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 23 of 26 of issue no.1 to 4 on preponderance of probabilities but plaintiffs have failed to discharge their onus of issue no.5 while the defendants has also failed to discharge the onus of issue no.6 on preponderance of probabilities. Accordingly, issue no.1 to 4 is decided in affirmative i.e. in favour of plaintiffs and against the defendants and issue no.5 is decided in negative i.e. against the plaintiffs. The issue no. 6 is decided in negative i.e. against the defendants.
Issue No. 7(vi) Relief.
33. The object of the judicial process is to find the truth from the pleadings, documents and the evidence led before the Court. In Maria Margarida Sequeria Fernandes V Erasmo Jack de Sequeria, (2012) 5 SCC 370, it was observed that the truth should be guiding star in the entire judicial process. Truth alone has to be the foundation of justice. In view of above discussion and findings on issues, the suit of the plaintiffs stands decreed as under:-
(a) A decree of permanent injunction is passed in favour of the plaintiffs and against the defendants and their assignee, attorneys, legal heirs, agents etc are hereby restrained from transferring, assigning, mortgaging, selling or creating any third party interest or parting with possession of any part of property in favour of any person other than plaintiff in respect of suit property bearing No. WZ-B/47, First Floor, area measuring 50 sq yds, plot no. 207, Khasra No. 29, Village Nangli Jalab, Known as Krishnapuri, New Delhi more specifically shown in red colour Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 24 of 26 in the site plan Ex PW1/1 and FDRs no. TD 68612 and 68604, A/c No. 4143 for Rs. 58,862/- and Rs. 25,507/-, PNB, Tilak Nagar, New Delhi.
(b) A decree for possession with respect to the suit property bearing No. WZ-B/47, First Floor, area measuring 50 sq yds, plot no. 207, Khasra No. 29, Village Nangli Jalab, Known as Krishnapuri, New Delhi is passed in favour of the plaintiffs and against the defendants. Defendants are directed to vacate the suit property in question within one month from today i.e. on or before 24.01.2023.
(c) A decree of mandatory injunction is passed in favour of plaintiff and against the defendant thereby defendants are directed to hand over possession of all original documents (GPA/AGT /Will/Receipt/Affidavit etc executed in favour of deceased Smt. Raj Kumari kakkar) related to suit property bearing No. WZ-B/47, First Floor, area measuring 50 sq yds, plot no. 207, Khasra No. 29, Village Nangli Jalab, Known as Krishnapuri, New Delhi and FDRs no TD 68612 and 68604, A/c No. 4143 for Rs. 58,862/- and Rs. 25,507/-, PNB, Tilak Nagar, New Delhi to the plaintiff within one month from today i.e. on or before 24.01.2023.
34. Cost of the suit is also awarded in favour of plaintiff.
Civ. DJ 60784/16 Amarjeet Singh Kakkar Vs Kuldeep Kumar Swahney Page No. 25 of 26
35. Decree sheet be drawn up, accordingly, after payment of deficient court fees, if any.
36. File be consigned to Record Room, after necessary compliance.
Digitally signed by SYED
SYED ZISHAN ZISHAN ALI WARSI
Announced in the open Court ALI WARSI Date: 2022.12.23
16:52:03 +0530
[SYED ZISHAN ALI WARSI]
Dated : 23.12.2022 ADJ-05, WEST DISTRICT
TIS HAZARI COURT, DELHI
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